On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-07-0949.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 3, 2006
Decided: November 1, 2006
Remanded by Supreme Court: January 31, 2008
Resubmitted: March 6, 2008
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
On remand from the Supreme Court, State v. Wilder, 193 N.J. 398, ___ (2008) (slip op. at 28 n. 3), we consider defendant's contentions that the twenty-three-year sentence and the concurrent five-year sentence were manifestly excessive or, in the event they were not excessive, the sentences must be reconsidered under State v. Natale, 184 N.J. 458 (2005). We conclude that Natale and State v. Dalziel, 182 N.J. 494 (2005), both of which were decided after the sentencing in this case, require that we remand for reconsideration of the sentence.
Defendant urges that the trial judge erred in concluding that there was only one mitigating factor under N.J.S.A. 2C:44-1(b), the hardship that would be suffered by defendant's dependent children under N.J.S.A. 2C:44-1(b)(11). Defendant further contends the court erred in finding two of the three aggravating factors, prior history under N.J.S.A. 2C:44-1(a)(6) and risk of reoffense under N.J.S.A. 2C:44-1(a)(3), in light of defendant's conduct over the seven years preceding the subject crime and the judge's acknowledgment that defendant had become a role model in the community since he was released from prison. Defendant asserts that the judge should have found that he led a law-abiding life for a significant period of time under N.J.S.A. 2C:44-1(b)(7), his conduct was the result of circumstances unlikely to recur under N.J.S.A. 2C:44-1(b)(8), his character and attitude were such that he was unlikely to commit another offense under N.J.S.A. 2C:44-1(b)(9), and he was particularly likely to respond affirmatively to probationary treatment under N.J.S.A. 2C:44-1(b)(10).
We need not relate the facts of the case as they were thoroughly discussed in our initial decision, State v. Wilder, No. A-1799-04 (App. Div. Nov. 1, 2006) (slip op. at 2-10), and in Wilder, supra, 193 N.J. at ___-___ (slip op. at 3-8). Before addressing the merits of the issues raised on appeal, we note that defendant did not argue mitigating factor (10) at sentencing and, thus, we will not consider it on appeal because it does not go to the jurisdiction of the court nor concern an issue of public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'") (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).
At sentencing defendant argued that mitigating factor (7) should be found because defendant was married; maintained a stable household; supported his children and stepchildren; worked continuously since his release from prison; owned a luncheonette and a business preparing lunches for young school children; was involved in the basketball league, youth centers and church activities in Paterson; and had been an upstanding member of his community. In short, "Mr. Wilder, for a long time leading up to this offense, had done everything to turn his life around and contributed to his family and the community." The prosecutor acknowledged that defendant had turned his life around but argued that the evidence of defendant's guilt was strong.
Defendant next urged that mitigating factor (8) should be found because "this whole offense was the result of a series of events between people involved in illegal drug dealing that ended up with one of their cars smashing into Mr. Wilder's [new boot] store." He argued that "[i]t would not be reasonable to believe that those circumstances, or circumstances like them would ever occur again." He pointed out that the events preceding the crime were not brought about by defendant's conduct and that the crime was "not part of a pattern of behavior on Mr. Wilder's part."
Defendant also submitted that mitigating factor (9) existed because his character and attitude indicated that he was unlikely to commit another offense. He argued that the crime "was an aberrational incident that resulted from a tragic set of unfortunate circumstances." He pointed out that he had been trying to make a better life for his family. Many persons spoke at his sentencing and many wrote to the judge in advance of the sentencing to attest to his good character and his attitude.
As to the aggravating factors, defendant argued with respect to his prior history that he committed three drug-related offenses over a four-year "aberrational" period of time ending with an offense in 1991, which was eleven years prior to the current offense. None of the prior offenses involved any violence, they were all third-degree crimes and the prior history should not be considered an aggravating factor. As to the risk of reoffense, defendant commented that "I have already addressed that with regard to a mitigating factor, and I don't believe it is an appropriate aggravating factor." In ...